“Conscience is the Most Sacred of Property”: James Madison’s Essay on Property
by Tony Williams
On January 24, 1774, James Madison wrote to a college friend praising the Boston Tea Party, which had occurred only weeks before. He praised the Boston patriots for their boldness in “defending liberty and property.” Equating political and civil liberty, he warned that if the Church of England had established itself as the official religion of all the colonies, then “slavery and subjection might and would have been gradually insinuated among us.”
Madison had in mind the religious tyranny that he was then witnessing in Virginia. In an adjacent county to his home, a half dozen itinerant Baptist ministers were in jail for preaching the Gospel to all who would listen, even from their jail cells. Baptists and other dissenting Christians had suffered horrific violations of their religious liberty when they were horsewhipped on stage or violently driven out of towns for preaching without a license. Madison lamented that a “diabolical Hell-conceived principle of persecution rages,” and asked his friend to “pray for liberty of conscience to revive among us.”
The young Madison believed that religious liberty was an essential right of mankind. Educated at Princeton under the tutelage of Rev. John Witherspoon, he was imbued with the ideas of religious and political liberty from the Scottish Enlightenment. Madison told his friend, “That liberal catholic and equitable way of thinking as to the rights of conscience, which is one of the characteristics of a free people.”
In April, 1776, with the war raging, a twenty-five-year-old Madison was elected to the Virginia Convention, the popular government created after the flight of the royal governor. On May 15, the Convention instructed its delegates to the Continental Congress to “propose to that respectable body to declare the United Colonies free and independent states, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain.” On June 7, 1776, Virginian Richard Henry Lee would offer such a resolution leading to Thomas Jefferson writing the Declaration of Independence and the fateful debate and decision for independence.
On the very same day in May, the Congress adopted a resolution calling on the colonies to “adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents.” The resolution, which John Adams believed was “independence itself,” was introduced by his preamble which stated that the “exercise of every kind of authority under the said Crown should be totally suppressed.” The Congress thus was stating the Lockean principle that the sovereign people were creating republican self-government with the purpose of protecting their rights.
The Virginia Convention immediately followed Congress’ exhortation and appointed a committee to draft a constitution and a Declaration of Rights. George Mason penned the Declaration of Rights, which was, in the words of Edmund Randolph, “a perpetual standard” in the principles of government. It stated that the government was rooted upon a social compact in which the sovereign people were by nature free and equal, and had certain inalienable rights. When the government became destructive of the people’s liberties, they could overthrow tyrannical government. The Declaration of Rights then included the principles of separation of powers, free elections, rights of the accused, and freedom of the press.
Mason then expressed what was considered an enlightened view of religious toleration. His draft of the declaration stated, “All men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience.” Madison rejected the idea of mere tolerance for another’s rights and proposed different amendments that would fundamentally secure the right of religious conscience. The final version read, “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” Although the declaration did not immediately disestablish the official Anglican Church, Madison’s statement that religious conscience was an inalienable right of man meant that it could not long endure.
In fact, Madison would be at the center of the struggle over establishment a decade later when Virginian legislators took up the issue of Patrick Henry’s bill for a general assessment for religion. After some brilliant politics that delayed the consideration of the bill and pushed Henry into the governorship, Madison led the forces of disestablishment with his 1785 “Memorial and Remonstrance” against religious taxes. He wrote, “The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.” Madison continued, stating that, “It is unalienable also, because what is here a right towards men, is a duty towards the Creator.” That duty is built into the fabric of human nature and precedes the claims of civil society. “We maintain therefore that in matters of religion, no man’s right is abridged by the institution of civil society and that religion is wholly exempt from its cognizance.” If there is a sense here of separation of church and state, Madison’s understanding is that the government must not interfere with the inalienable rights of liberty of conscience.
In the First Congress, Madison fulfilled the promise of the Federalists to ratify amendments to the Constitution protecting essential liberties though not altering the structure of the government. The First Amendment reflected decades of Madison’s serious thought and work protecting religious liberty. Although Madison wanted the Bill of Rights applied to the states, he lost the debate, and the First Amendment specifically limited the power of Congress to establish an official national church or to interfere with freedom of conscience. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” He had been at the forefront of the twin goals of disestablishment and religious liberty as a natural right in Virginia during the American Revolution and now at the national level during the founding of the American republic.
In 1791 and 1792, Madison wrote a series of essays on the principles of republican government for Philip Freneau’s highly partisan National Gazette. On March 29, 1792, Madison published his “On Property” essay, which posited a new understanding of a property in natural rights. Madison writes that property is much more than merely land or wealth, and “embraces every thing to which a man may attach a value and have a right.” In this sense, every person “has a property in his opinions and the free communication of them.” The most essential right in human nature is religious liberty, in Madison’s estimation. “He has a peculiar value in his religious opinions, and in the profession and practice dictated by them.” He sums up his thinking about property by stating, “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”
Madison then brilliantly explored the very purpose of republican self-government to protect the inalienable rights of mankind, striking another Lockean chord. “Government is instituted to protect property of every sort,” he writes, “This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” For Madison, it was a moral principle that the government must act justly and fulfill its purposes. His social compact thinking mirrored that of the Declaration of Independence. He wrote:
More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part of positive law, the exercise of that, being a natural and unalienable right . . . [There is] no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.
Madison averred that the United States government was not a government that violated the sacred rights of mankind. Indeed, it was instituted to protect those rights. “If there be a government then which prides itself in maintaining the inviolability of property . . . and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties . . . that such a government is not a pattern for the United States.” Madison finished his essay with more conditional logic, stating that if the new republic wished to be known for wise and just government, it would “respect the rights of property, and the property in rights.”
James Madison spent a lifetime thinking about the natural right of religious liberty and in public service doggedly working to protect it at the state and national level from government intrusion. The current administration shows either a willful ignorance or a remarkable disregard for Madison’s career-long defense of freedom of conscience to so openly and blatantly violate the property rights that Roman Catholics and other religious people have in their conscience. Thus, we are reminded of the importance of studying history and the Constitution that we may understand American founding principles and firmly stand united against any violations of religious and civil liberty by the government.
Read On Property by James Madison here: https://constitutingamerica.org/?p=3759
Tony Williams is the Program Director for the Washington-Jefferson-Madison Institute in Charlottesville, VA, and the author of four books including, America’s Beginnings: The Dramatic Events that Shaped a Nation’s Character.
Monday, March 25, 2013 – Essay #26